Mike Argento: Court must rule for protesters

His appearance gives that impression - his blocky mission-to-Mars sunglasses and hair that looks as if it were groomed using a defective weed whacker. He has the craggy, constipated appearance associated with a person whose motivation for getting out of bed every day is seething hatred and loathing for everyone and everything. He fashions himself as an Old Testament prophet who can't wait for the smitings to commence, for the people he perceives to be sinners to be hurled into a lake of fire while he cackles maniacally on the shore.

He is the head of the Westboro Baptist Church, a congregation which seems limited to his family. They all seem to have inherited Phelps' paranoid streak and delusional imagination. The targets of their abscessed vitriol are many. They hate American soldiers, school administrators, clergy of any variety who disagree with them, which, thankfully, seems to be all of them. They hate the Irish, the Swedes, Catholics and Jews. They are rabid

On the surface, you would think he has nothing at all in common with Larry Flynt.

You'd be wrong.

He and Flynt are kindred spirits.

Flynt, of course, is a self-described smut-peddler. His publication and videos - Hustler magazine is merely the flagship of his porn empire - don't just skirt the boundaries of bad taste, they obliterate them. (Or so I've been told.)

Flynt is also kind of eccentric and has often been described as a lunatic himself. He once wore an American flag as a diaper to a court date and was confined to a psychiatric hospital after throwing oranges at a judge during another.

And if Phelps prevails before the U.S. Supreme Court in the case involving his church's protests at a soldier's funeral, he should send Flynt something nice - a crate of oranges, maybe.

If you're not familiar with the case, it arose from the funeral for Lance Cpl. Matthew Snyder, a Marine killed in Iraq. Westboro protested at the funeral, making some insane, offensive and nonsensical point that included thanking God for dead soldiers and how Snyder died because "God Hates Fags."

None of it made much sense. I was there and spoke with Shirley Phelps-Roper, Phelps' daughter. That's not quite accurate. I didn't really speak with her. I asked her a question - something along the lines of "What is this supposed to mean?" - and she spent about 10 minutes screaming at me and telling me I was going to hell. (Shirley, save me a good seat!)

The protesters were cordoned off, by the road. A phalanx of Patriot Guard Riders, waving flags, blocked Phelps' band from view of the church.

Snyder's father, Albert Snyder, who lives in Spring Garden Township, sued the church, claiming it had invaded his privacy and inflicted emotional harm.

There is no doubt of that. During the trial, Snyder testified, "They turned this funeral into a media circus and they wanted to hurt my family. They wanted their message heard and they didn't care who they stepped over. My son should have been buried with dignity, not with a bunch of clowns outside."

A jury found as much, awarding Snyder $10.9 million in damages - a judge later reduced the award to $5 million. Westboro appealed the case and won a reversal. And last week, the U.S. Supreme Court decided to hear the case.

It's likely that the court found the case interesting because it appears to be a cousin of the landmark case involving Flynt. It was Falwell vs. Flynt, the late preacher suing Flynt over a parody ad that indicated that Falwell lost his virginity to his mother in an outhouse while drunk. Falwell's libel complaint was thrown out early. The complaint that stood involved Falwell's claim of emotional distress caused by the parody. (Coincidentally, Phelps hated Falwell and had threatened to protest at his funeral.)

The case went to the Supreme Court and Flynt prevailed in an 8-0 ruling. (Justice Anthony Kennedy abstained.)

In his ruling, then-Chief Justice William Rehnquist concluded that the First Amendment prohibited awarding compensation to public figures for the intentional infliction of emotional distress.

It was a landmark case. Without it, Jay Leno would be out of business. Jon Stewart would be selling shoes in New Jersey. Editorial cartoonists would be illustrating greeting cards and wise-aleck newspaper columnists would have to find real employment, something for which they are poorly suited.

It is virtually the same as this case, except Snyder is not a public figure, or was not one at the time. And that could perhaps be the basis for the high court's interest in the case, leading the court to rule in Snyder's favor because he is not a public figure.

While there is no denying that Phelps and his crew of creeps caused Snyder emotional pain and suffering, finding that he owes due damages would be a contradiction of First Amendment rights. The court could also do some judicial yoga and conclude that it is Snyder, not the government, trying to limit Westboro's right to free expression, and therefore the First Amendment is not applicable.

Or the court could pull an argument out of its butt, something that amounts to a legal because-I-said-so.

Who knows? This court has some weird notions about the Constitution and the First Amendment. This is the court, I remind you, that ruled that corporations have the right to express themselves by purchasing the best government their money can buy.

You may not like Phelps and what he has to say. You might find him abhorrent. You might think that he and his band should shut up and return to wherever they are from to await Jesus' return and spare the rest of us their lunacy.

I could never defend them. They are despicable human beings.

But I can defend their right to say what they believe.

The First Amendment doesn't merely protect speech we agree with. For it to work, it has to protect even its most repellant practitioners.

Even creeps like Phelps.

Mike Argento's column appears Mondays and Fridays in Living and Sundays in Viewpoints. Reach him at mike@ydr.com or 771-2046. Read more Argento columns at www.inyork.com/ydr - click on the opinion section - or visit his blog at www.mikeargento.com.